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2010 DIGILAW 425 (GAU)

Budhua Baruah v. State of Assam

2010-06-10

UTPALENDU BIKAS SAHA

body2010
JUDGMENT U.B. Saha, J. 1. The instant bail application under Section 439(1), Code of Criminal Procedure is filed by the Petitioner Budhua Baruah in connection with Simalugari Police Station case No. 124 of 2009 under Section 366A, IPC. 2. Heard Mr. P. Kataki, learned Counsel for the Petitioner as well as Mr. B.S. Sinha, learned Counsel for this Respondent State. 3. The prosecution case, in short, is that on 23.12.2009, one Sri Biran Gogoi lodged an FIR to the Officer In-charge of Simaluguri Police Station that on 21.12.2009 at about 11.00 a.m. while his 13 year old daughter was going to the market at Simaluguri Town, the present accused Petitioner of his village, kidnapped his said minor daughter from Simaluguri bus stand and thereafter he was not aware about her whereabouts. Therefore, he requested for recovery of his minor daughter by filing the aforesaid written ejahar. 4. The instant bail application was listed on 31.5.2010 as motion and on that day, the matter was fixed again for motion on 2.6.2010. This Court after hearing the parties requested the P.P. for producing the case diary. Accordingly, the matter is listed today before this Court. 5. Mr. Kataki, learned Counsel for the Petitioner submits that the entire allegation made in the FIR should be dislodged as the said information is totally false and fabricated one. He also submits that the Petitioner is in custody since 9.4.2010. 6. While resisting the submission of Mr. Kataki, Mr. B.S. Sinha, learned Addl. P.P. submits that by this time investigation has already been completed and I.O. has also submitted the charge sheet. Therefore, it would not be proper for this Court to grant bail to the Petitioner as a specific case is made out against the Petitioner after investigation. He also submits that the court should consider a bail application for a case after filing charge sheet, inter alia, that his status is not like the other accused in whose case charge sheet has not been submitted. 7. He also submits that the court should consider a bail application for a case after filing charge sheet, inter alia, that his status is not like the other accused in whose case charge sheet has not been submitted. 7. Upon hearing the learned Counsel of the parties and on going through the records available, this Court is of opinion that while the court is hearing a bail application, it is the duty of the court not to see the nature of the offence, but to see whether alleged criminal, i.e., the accused is in any way connected with the crimes, unless the accused is connected with the crime, the court should not refuse the bail. 8. The Apex Court in the case of State of Rajasthan, Jaipur v. Balchand AIR 1977 SC 2447 while consider the principle of bail noted that the basic rule may perhaps be tersely put as bail, not jail, except where there are circumstances suggestive of fleeing from justice or thwarting the course of justice or creating other troubles in the shape of repeating offences or intimidating witnesses and the like, by the Petitioner who seeks enlargement on bail from the court. It is also noted by the Apex Court that it is true that the gravity of the offence involved is likely to induce the Petitioner to avoid the course of justice and must weigh with the court when considering the question of jail. 9. There is no doubt that the status of an accused before filing the charge sheet and after filing of charge sheet is different. But at the same time, the court should consider that mere filing of charge sheet should not be a ground for rejecting the prayer for bail, as after filing of charge sheet there remains nothing for the investigating agency. At the same time, unless the charge sheeted accused is granted bail, he would be deprived of his valuable right for defending his case before the trial court at the time of trial as right to justice is a fundamental right of a citizen. The same cannot be denied unless there is a specific ground taken by the prosecution that after releasing the accused on bail either he will abscond or tamper the witnesses or there is a threat to the State administration for maintaining public peace and tranquility. 10. The same cannot be denied unless there is a specific ground taken by the prosecution that after releasing the accused on bail either he will abscond or tamper the witnesses or there is a threat to the State administration for maintaining public peace and tranquility. 10. Keeping the aforesaid ground as stated above, this Court is of considered opinion that a charge sheeted accused like the present Petitioner is entitled to be granted to bail. Accordingly, the prayer for bail is granted. The Petitioner is allowed to go on bail on furnishing a bond of Rs.10,000 with one surety of the like amount to the satisfaction of the learned CJM, Shivsagar on further conditions that he shall appear before the learned trial court as and when his presence is required and he shall not threat the witnesses of the prosecution, if any. It is made clear that if the Petitioner did not appear before the trial court as and when trial of the case is initiated and his presence is necessary, then the learned CJM shall be at liberty to cancel the bail of the Petitioner after providing him opportunity of being heard. 11. With the aforesaid order, bail application is disposed of.